Free Trial Brief - District Court of Arizona - Arizona

1 Negatu Molla (Bar No. 006254)

2 BOWMAN AND BROOKE LLP Suite 1600, Phoenix Plaza
3 2901 North Central Avenue

David W. Willams (Bar No. 022764)

Phoenix, Arizona 85012-2761
4 (602) 643-2300

Attorneys for Defendant Workhorse Custom Chassis
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UNITED STATES DISTRICT COURT
DISTRICT OF PHOENIX

LANE SENNETT,
Plaintiff,
v.

No. CV04 0161 PHX ROS
DEFENDANT WORKHORSE CUSTOM CHASSIS, LLC'S TRIAL MEMORANDUM RE VARIOUS

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FLEETWOOD MOTOR HOMES OF CALIFORNIA, INC. and WORKHORSE CUSTOM CHASSIS; INC.,

ISSUES

Defendants.

(Assigned to Honorable Roslyn O. Silver)

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17 Defendant Workhorse Custom Chassis ("Workhorse") hereby submits the

18 following trial memorandum to the Court addressing various evidentiary and legal
19 issues for purposes of triaL.
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i.

LEGAL ISSUES
A. The Court's Order Dismissing Fleetwood And The Rule Of Law Set

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Forth In The Order Is The Law Of The Case.

23 In its order dismissing Fleetwood ("Fleetwood Order"), the Court set forth the
24 standards for a breach of a limited written warranty, breach of the implied warranty

25 of merchantability and Plaintiff's regulatory violations claims. See Docket 173. It is
26 anticipated that Plaintiff will seek to introduce legal interpretations for these causes 27 of action that either differ or directly contradict the Court's Fleetwood Order via jury
28 instructions or other arguments to the Court.

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To the extent Plaintiff proposes jury instructions that are contradictory the

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Fleetwood order, they should be rejected. The Court has already set forth the
standards applicable to Plaintiffs legal theories in the Fleetwood Order. If Plaintiff

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wanted to challenge the Court's Order, she could have filed a motion for
reconsideration, which she never did. Further, the Fleetwood Order is now the law
of the case and should be followed throughout the remaining proceedings in at the

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district court leveL. See Christianson v. Cold Indus. Operatim:: Corp., 486 U.S. 800, 816, 108 S. Ct. 2166, 100 L. Ed. 2d 811 (1988) (The law of the case doctrine

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requires "'that when a court decides upon a rule of law, that decision should
continue to govern the same issues in subsequent states in the same case.' This

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rule of practice promotes the finality and effciency of the judicial process by
'protecting against the agitation of settled issues"').
1. Breach of Written Warranty

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The applicable rule of law set forth in the order for a breach of warranty is:

Plaintiff must demonstrate that (i) the (motor home) was subject to a warranty; (ii) the (motor home) did not conform to the warranty; (iii) the (warrantor) was given reasonable opportunity to cure any defects; and
establish these (our elements, she must then demonstrate that

(iv) the (warrantorl failed to cure the defects. . .If Plaintiff is able to

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Fleetwood's breach of warranty caused her economic loss. However, if Plaintiff is unable to meet any of these requirements, her breach of
warranty claims faiL.

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Fleetwood Order, p.6:14-21.

Further, Plaintiff must show evidence of defects in materials or workmanship,

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which if outside of the purview of a lay witness, must be shown with expert
testimony:
A lay witnesses' testimony regarding a defect will often be enough 'if

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where an alleged defect is 'not within the reasonable purview of the average lay person' expert testimony is required. In addition, the 'mere
existence' of a certain problem, however, does 'not support the

that defect is one that can be understood by the reasonable juror'. But

inference' that the problem is caused by a defect. The problem must
caused by a 'manufacturing defect... in material or workmanship.

be present and there must be some evidence that the problem is

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Id. at p. 11:12-21 (internal citations omitted).
2. Breach of the Implied Warranty of Merchantability

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The Court also set forth Plaintiff's burden for a establishing a breach of the
implied warranty of merchantability:

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fA) plaintiff must prove that a warranty existed, the defendant breached the warranty, and the defendant's breach was the proximate cause of

the loss sustained.
Id. at p. 14:20-22.
B.

Workhorse Requests That The Court Instruct The Jury That The Cost Of Repair Is The Proper Measure Of Damages In A Breach Of
Warranty Case.

The typical measure of damages for a breach of a limited warranty is the

difference at the time and place of acceptance between the value of the goods
accepted and the value they would have had if they had been as warranted, unless
special circumstances show proximate damages of a different amount. See Nev. R.

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Stat. § 104.2714; Dixon Dairy Farms, Inc. v. ConaQra Feed Co., 245 Ga.App. 836,

837, 538 S.E.2d 897, 898-99 (Ga. App. 2000). The most objective method used to
determine the difference between the value of goods as warranted and the value of

the goods as accepted is the cost to repair the goods to bring them back to their
original value. Tarter v. MonArk Boat Co., 430 F. Supp. 1290, 1294 (E.D. Mo. 1977)

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(finding that the cost to repair the defective boat was a better measure of damages

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than the plaintiffs testimony about the alleged loss of value). As one respected
treatise on warranty law has stated:
Perhaps the best measure of the diminution in value caused by breach

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their original value. The advantage of this measure for the buyer is its
emphasized that repair cost is a better measure of the buyer's primary economic loss than a more amorphous comparison of market values.

of warranty is the cost of repairing the goods to bring them back to

objective nature for purposes of proof. A number of courts have

Barkley Clark & Christopher Smith, The Law of Product Warranties & 7.28 (Warren,

Gorham & Lamont 1984).
It is anticipated that Plaintiff will argue that the jury should be instructed to

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1 award the difference in market value between the purchase price of the motor home

2 and what Plaintiff and her expert believe are the "market value of the motor home in
3 its defective condition." However, this method of calculating damages is too

4 amorphous and speculative to allow the jury to award actual damages. In fact, the
5 jury is not permitted to speculate as to what Plaintiffs damages are in determining

6 an award of damages. "An award of damages cannot be based on conjecture or
7 speculation: (T)he plaintiff in every case should supply some reasonable basis for

8 computing the amount of damage and must do so with such precision as, from the
9 nature of his claim and the available evidence, is possible." Walter v. Simmons, 169

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Ariz. 229, 221, 818 P.2d 214, 236 (App. 1991).

Instructing the jury on calculating damages by basing their award on a loss in

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"market value" of the motor home penalizes Workhorse by making it responsible for

the value of the entire motor home, rather than the cost of the chassis, the product

that Workhorse manufactured and warranted. Both Plaintiff and Plaintiffs expert,

Willam Trimmell, intend to testify that the overall value of the motor home has
decreased by as much as $43,925.00 at triaL. Their testimony is not limited to

simply the value of the chassis. This places an undue burden on Workhorse and
unfairly enriches Plaintiff by unfairly making Workhorse responsible for a coach that

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it did not build and other manufacturer's products that are attached to the motor
home (i.e. the leveling jacks, slide-out, generator, etc.). The cost of repair

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methodology ensures that Plaintiff can only recover damages for the alleged
unrepaired defects with the chassis.

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The cost of repair method of determining damages is widely accepted as the

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preferred method of calculating damages in a breach of warranty lawsuit. One
treatise has stated:

The cost of repair to bring the goods to their warranted condition has been widely recognized by the courts as a valid measure of a buyer's

erroneously rejected repair costs in favor of measuring damages under the amorphous "value" standards of subsection (2), the overwhelming

general damages under Section 2-714. While a few courts have

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judicial consensus is that repair costs are presumptive evidence of the difference between the value of the goods as accepted and their value as warranted. . .The ease with which repair costs can be proved at trial

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damages to the more uncertain evidence of values. It may often be diffcult for a buyer to prove value, both as to the goods as accepted
and as warranted, particularly where the goods have no market price.

has caused the courts to regard them as preferable evidence of

Ron Ryden Anderson, DamaQes Under the Uniform Commerc~ Code & 10:6
Updated 2005).1 See also FarQo Mach. & Tool Co. v. Kearney & Trecker Corp.,

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428 F. Supp. 364, 382 (E.D. Mich. 1977) (holding cost of repair is the proper
measure of damages in a breach of warranty involving an industrial machine used

for machining metal); Hyundai Motor America, Inc. V. Goodin, 822 N.E. 2d 947, 951
(Ind. 2005) ("Damages can also be measured by the cost of replacement or the
cost of repair").

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For the reasons set forth above, Workhorse requests that the Court instruct

that the jury that the cost to repair the chassis of the motor home is the proper
method of calculating damages.
II.

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EVIDENTIARY ISSUES
A.

Evidence Related To The Condition Of The Entire Motor Home Or Loss In Value Of The Whole Motor Home Is Irrelevant And Highly PrejudiciaL.

Workhorse anticipates that Plaintiff intends to introduce evidence or make
statements to the jury about the condition of the entire motor home or how the
motor home has lost its overall value. This evidence may be introduced through:

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Repair records related to complaints about

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components or other manufacturer's components;
how the motor home's overall value has decreased;

Fleetwood

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Testimony from Plaintiff or her expert, Wiliam Trimmell, about

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Testimony from Plaintiff or Mr. Trimmell about repairs to
Fleetwood's components or other manufacturer's components;

Governmental recalls related
manufacturer's components; and

to

Fleetwood's

or

other

1 A copy of this treatise is attached to the Court's work copy as a courtesy.

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Internal documents of Fleetwood or other manufacturers.

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Workhorse is not defending the manufacturing of the entire motor home.

Workhorse is only a component manufacturer because it only manufactures and
warrants the chassis of the motor home, which generally includes the chassis frame,
wheels, and engine components.

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Rule 402, Fed. R. Evid., provides that all relevant evidence is admissible.
Rule 401, Fed. R. Evid., defines relevant evidence as "having any tendency to
make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence." Here

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Plaintiff is asserting that Workhorse breached its limited warranty, not the warranty
of another manufacturer. Cippolone v. LiQQett Group. Inc., 505 U.S. 504, 525

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(1992) ("A manufacturer's liabilty for breach of an express warranty derives from, and is measured by, the terms of that warranty. Accordingly, the "requirement(s)"

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imposed by an express warranty claim are not "imposed under State law," but
rather imposed by the warrantor."); Hines v. Mercedes-Benz USA, 358 F. Supp. 2d

1222, 1229 (D. Ga. 2005) ("By the terms of the warranty, a breach occurs only
when Defendant has either refused or failed to correct a defect."). Therefore,

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because Workhorse is only responsible for its warranty, evidence of other
manufacturer's components is irrelevant and inadmissible.

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Further, if the Court found the disputed evidence to be relevant, it should be

excluded because the probative value, if any, is substantially outweighed by
prejudice, confusion, cumulativeness, waste of judicial resources and misleading of
the jury. See Fed. R. Evid. 403. The public generally feels passionately about

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things such as "lemon laws" and vehicles that cannot be properly repaired.
Workhorse should not be saddled with another manufacturer's inability to repair the

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motor home or its respective component. Further, because Workhorse did not manufacture the entire motor home, Plaintiff should not be able to try to blame
Workhorse for the loss in value of the entire motor home. Such an argument would

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be analogous to someone arguing that because their car stereo did not work, they

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should be given a new car. Workhorse manufactured a $20,000 chassis, not a
$115,000 motor home. Workhorse has no control over what another manufacturer

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does to the chassis once the chassis has been sold to the coach manufacturer or

another manufacturer. That is unfair burden for Workhorse to bear, and the jury
should not be allowed to speculate on such matters.

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B.

Plaintiff Should Be Allowed To Testify About Her Emotions Or
Feelings About The Chassis Or The Motor Home.

This lawsuit is a contract action, not a tort. Chaurasia v. General Motors
Corp., 212 Ariz. 18, 126 P.3d 165, 169 (2006) ("Express warranties are treated like

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any other contract and interpreted according to general contract principles").
Plaintiff is suing Workhorse for a breach of its limited warranty, and not some other

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cause of action such as consumer fraud, etc. Workhorse anticipates that Plaintiff
intends to testify about how she felt when she had complaints related to the chassis
of the motor home. For instance, she may offer testimony about how she was

angry when her motor home allegedly stalled while on a cross-country trip. She
may also offer testimony about her anger related to repairs that were performed on

the motor home chassis.

This type of testimony about Plaintiffs emotions related to the motor home
chassis, her experiences with Workhorse obtaining repairs, or with the repair
process in general are irrelevant to the issue of whether Workhorse complied with

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the terms of its limited warranty by making repairs to the chassis. See Fed. R.
Evid. 401 and 402. If this were a tort action, such testimony may be relevant with

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respect to personal injury damages of Plaintiff; however, this is simply a contract
action-whether Workhorse did what it promised it would do pursuant to the terms

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of the limited warranty. How Plaintiff felt has no bearing on that issue and is
inadmissible.

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Testimony about Plaintiff's feelings as described above is also unduly
prejudicial because it simply seeks to invoke the sympathy of the jury, and inflame

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them against Workhorse. See Fed. R. Evid. 403. As stated above, the public is
already weary of things like "lemon laws" because car maintenance and repairs are
something that every person deals with, and the public, including the jury, will

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likely

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feel overly sympathetic to Plaintiff about the alleged "inconvenience" of having to
have the chassis repaired. Appealing to the jury's sympathy in this manner

removes them from the issue of whether Workhorse complied with its obligations

under the limited warranty. Therefore, Workhorse requests that the Court preclude
any testimony on Plaintiffs emotions or feelings about the motor home chassis, the
repair process, any supposed inconvenience or her dealings with Workhorse.

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RESPECTFULLY SUBMITTED thiSc.~ day of August, 2006.
BOWMAN AND BROOKE LLP

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By: Isl David W. Willams
Negatu Molla

2901 North Central Avenue

David W. Wiliams Suite 1600, Phoenix Plaza

Attorneys for Defendant Workhorse Custom Chassis

Phoenix, Arizona 85012-2761

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CERTIFICATE OF SERVICE

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I hereby certify that on the c5.5 day of August, 2006 I caused the attached
document to be electronically transmitted to the Clerk's Offce using the CM/ECF

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System for filing and transmittal of a Notice of Electronic Filing to the following
CM/ECF registrants:

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Jennifer Basola

KROHN & MOSS, L TD

Attorney for Plaintiff

111 W Monroe, Suite 711 Phoenix, AZ 85003

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sl Judy Kaelin
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